IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM

LABOUR DISPUTE NO. 02 OF 2017

CONSERVATION HOTELS DOMESTIC

SOCIAL SERVICES AND CONSULTANCY

WORKERS UNION (CHODAWU)........................... COMPLAINANT

VERSUS

SOUTHERN SUN HOTEL TANZANIA LTD

T/A SOUTHERN SUN DAR ES SALAAM...................... RESPONDENT

JUDGMENT OF THE COURT

I. ARUFANI. J.

The complainant, CHODAWU instituted in this court the

complaint at hand seeking for an order to compel the respondent
to restore to it access to exercise organizational rights at the
respondent's workplace. The respondent disputed the complaint
and stated that, the Recognition Agreement entered between
them was lawfully terminated and now the complainant has no
members at the respondent's workplace. The respondent prays
the complaint to be dismissed with costs for being devoid of

merit.

The background of the complaint as can be deduced from

the documents filed in this court by the parties is to the effect
that, the respondent granted the complainant access to exercise
their organizational rights at its workplace on October 2012 and
the complainant started to recruit members at the respondent's
workplace. On 14th March, 2014 the parties entered into a
recognition agreement whereby the complainant was recognized
as the collective bargaining agent at the respondent's workplace.
The parties agreed that, the respondent would have negotiated
with the complainant annually in respect of wages and terms and
conditions of employment for all Union members falling within the
bargaining unit.

On 1st April, 2014 the respondent increased the wages of

employees who were not members of the complainant by 10%
and wages of the employees who were members of the
complainant were not increased. The complainant and the
respondent convened a meeting to negotiate the wages of their
members and they proposed the wages of their members to be
increased by 20% but the respondent refused to accept the said
proposal. After several correspondences between the parties and
failed to agree on the increase of the wages of the employees
who were members of the complainant, on 6th February, 2015 the
respondent issued to the complainant a three month notice to
terminate recognition agreement. The ground for termination of
the recognition agreement is that, the complainant has breached
the terms of recognition agreement.

After expiration of the period of notice issued by the

respondent to the complainant, the complainant referred the
dispute to the Commission for Mediation and Arbitration for
mediation and after the mediation failed the complainant filed the
dispute in this court. The issues framed for determination in the
dispute at hand are as follows:-

1. Whether complainant was denied right of access to the

employer premises to exercise organizational rights.
2. If the answer to the first issue is in affirmative whether
that amount to interference of freedom of association.
3. To what reliefs are the parties entitled.

During hearing of the dispute the complainant was

represented by Mr. Evance Nzowa, learned counsel andthe
respondent was represented by Mr. Waziri Mchome, learned
counsel. Each side called one witness to testify on its side.
Asteria Gerald, (CW1) testified for the complainant and while
being led by Mr. Evance Nzowa she told the court that, she is a
lawyer employed by the complainant. She said the Organizational
rights of the complainant are the rights of the complainant to get
members at the working place, to establish branches, to get fees
from their members and to train their members. She said the
recognition agreement gives the Union right to enter into
negotiation with the employer in respect of the rights of their
members.

She said they started exercising organizational rights at the

respondent's workplace on October, 2012 and they started
getting members on November, 2012. She said on 14th March,
2014 the union signed a recognition agreement with the
respondent. The witness said that, on 2nd June, 2014 the
respondent issued a notice to its employees showing increment of
wages for workers who were not members of the complainant
and the complainant's members were told to wait negotiation
between the complainant and the respondent.

She said after issuance of the said notice the complainant

wrote a letter to the respondent to complain what was done by
the respondent is discrimination and prayed if there is increment
of wages it should be done to all employees without
discrimination. CW1 said that, on 10th February, 2015 the
respondent issued a notice to the complainant showing that, on
6th May, 2015 they would have terminated the recognition
agreement. The witness tendered in court the notice of
termination of collective agreement entered by the complainant
and the respondent dated 6th February, 2015 and it was admitted
in the case as an exhibit Cl.

She stated further that, on 18th May, 2015 the respondent

wrote a letter to the complainant indicating that, they had already
terminated the recognition agreement and they will no longer
have any relationship with them and stopped deducting their fees
from their members. She said they have never received any letter
from any of their members indicating they have terminated their
membership. Finally she prayed the court to restore their
organizational right of access at the premises of the respondent
to continue to exercise their organizational rights.

When CW1 was cross examined by the counsel for the

respondent she said she don't know how many members they
had recruited up to when the recognition agreement was
terminated and she don't know how many members they have at
the respondent's working place up to now. She also said she don't
have the actual figure of the members whose fees were supposed
to be paid to the complainant. She stated further that, although
they have never received any letter from any member to show
they will not pay their membership fees to the complainant but
the respondent has never remitted any fees to them from when
the recognition agreement was terminated.

CW1 stated that, she has not tendered in court any letter as
an exhibit to show the respondent denied them right of entering
at their place of work to exercise their organizational rights. She
stated further that, they cannot go to the place where there is no
good relationship between the union and the employer to
exercise their organizational rights like recruiting members and
others.

Daudi Kasone, (RW1) testified for the respondent and

while being led by the counsel for the respondent he told the
court that, he is a financial controller at the respondent's Hotel.
He said the complainant has no members at their Hotel. He said
the complainant went to their Hotel and after discussion they
entered into recognition agreement. He said he has not seen any
letter prohibiting the complainant to exercise their organizational
rights at the respondent's workplace. He said the complainant's
prayer that their organizational rights at the respondent's hotel be
restored has no basis because they have never been denied right
to exercise their organizational rights and prayed the complaint to
be dismissed.

When cross examined by the counsel for the complainant he

said that, before termination of the recognition agreement the
complainant had members at their workplace. He said after
termination of the recognition agreement the employees of the
respondent who were members of the complainant wrote a letter
to show they have terminated their membership with the
complainant. He said the letter was written and signed by
Chairman and Secretary of the Union branch and from there they
stopped deducting fees from the members of the complainant.

He stated further that, without recognition agreement the

organization cannot do their functions at the premises of the
respondent. He also said they will not refuse to allow the
complainant to exercise their organizational rights at the
respondent's workplace if the court will make an order to that
effect and if the procedure for having a recognition agreement
will be followed. When re-examined by the counsel for the
respondent he said they have never denied the respondent to
exercise their organizational rights at their place of work. He said
that, as they have never denied the complainant right to exercise
their organizational rights, they cannot be granted what they
have never been denied.

Counsel for the parties filed their final submission in this

matter whereby while the counsel for the complainant tried to
show how the organizational rights of a registered union are
governed under part V of the ELRA the counsel for the
respondent tried to pursued the court to find those rights have
never been taken away from the complainant by the respondent.
The court will refer to their submissions whenever it will find
there is a necessity of doing so.

Starting with the first issue which is asking whether the

complainant was denied right of access to the employer's
premises to exercise their organizational rights the court has
found proper to state at this juncture that, as rightly argued by
the counsel for the parties the organizational rights for any trade
union are provided under Part V of the ELRA. Section 60 (1) of
the Act states that, any authorized representative of a registered
trade union shall be entitled to enter the employer's premises in
order to recruit members, communicate with members, meet
members in dealing with employer, hold meetings of employees
on the employer's premises and vote in any ballot under the
union constitution.
8
 Other organizational right provided under section 60 (2) of
the above referred Act is right to establish a field branch at any
workplace. It is also provided under section 61 (1) and (2) of the
Act that, registered trade union is entitled to get dues from the
wages of employees who are members of the trade union and
those dues are supposed to be deducted by the employer and
remitted to the trade union. Another right provided under section
62 of the Act is the right of representation.

Further to that if a registered trade union is recognized in

terms of section 67 is entitled to be provided by an employer with
reasonable and necessary facilities to conduct its activities at the
workplace as provided under section 60 (3) of the Act. As stated
by CW1 and without being disputed by RW1 and as shown
hereinabove the complainant was given a chance to exercise
those rights at the workplace of the respondent from 2012 and
managed to enter into a recognition agreement in 2014 and
became a bargaining agent at the workplace of the respondent.

Now the complainant's assertion is that, it can no longer

access the respondent's workplace to exercise those rights as the
recognition agreement they had entered has already been
terminated by the respondent and the respondent has declared
they will no longer have any relationship with the complainant.
That being the complaint it is now the task of the court to
determine if the complainant has managed to prove they have
been denied access to the respondent's workplace to exercise its
organizational rights.

The court has found as the complainant's allegation is that it

has been denied right of access to the respondent's workplace to
exercise its organizational rights, the duty to prove the said
allegation is on the complainant's shoulder. The above finding of
this court is supported by what was stated in the case of Hamid
Mfaume Ibrahim V. KBC Tanzania Ltd, [2014] LCCD 13
where it was held that:-

"The law under section 112 of the Evidence Act (Cap 6

R.E. 2002) provides clearly that: "The burden of
proof as to any particular facts lies on that
person who wishes the court to believe in its
existence, unless it is provided by law that the
proof of such facts shall lie on any other person".
And in Abdul-Karim Haji V. Raymond Nchimbi
Alois and Joseph Sita Joseph, (2006) T.L.R. 420 the
court held that; "It is an elementary principle that
he who alleges is the one responsible to prove
his allegation".
 While being guided by the above position of the law the
court has gone through the evidence adduced before the court by
CW1 and find that, apart from mere words that the complainant
has been denied right of access into the respondent's workplace
to exercise its organizational rights there is no evidence adduced
by that witness to establish existence of the alleged denial. The
court has found it has not been told if the complainant has ever
demanded or gone to the respondent's working place to exercise
its organizational rights provided under the provisions of the law
cited hereinabove and denied access to exercise those rights.

To the contrary the court has found the evidence of RW1 is

very clear that the complainant has never being denied access to
exercise its organizational rights. Further to that, the court has
found exhibit C l which was tendered in court by CW1 to establish
the respondent denied the complainant's right of access into its
working place to exercise its organizational rights is not stating
anywhere that the complainant was denied right to access into
the respondent's working place to exercise its organizational

rights.

The court has found exhibit C l is very clear that, the

relationship which exhibit C l states will not continue between the
respondent, and the complainant after termination of the
11
collective agreement as provided under paragraph 7 read
together with paragraph 8 of exhibit C l is the relationship in
respect of the collective agreement which has also been referred
by the parties in this matter as a recognition agreement. The
mentioned paragraphs states as follows:-

"7. In all of the circumstances, the company has

decided not to continue its relationship with the union.

8. All rights and obligations between the company and

the union in terms of the collective Agreement will
therefore cease with effect from $h May, 2015".
(Emphasis added).

In my view the wordings of the above paragraphs do not

show the complainant was denied right to access at the
respondent's working place to exercise its organizational rights
prescribed under the provisions of the law mentioned earlier in
this judgment. The only relationship which the court has found
was terminated by that notice is the right of the complainant to
be recognized as a bargaining agent at the respondent's working
place which is provided under section 67 of the ELRA.

As the court has been informed by the counsel for the

parties that the issue as to whether termination of the recognition

12
agreement which had been entered by the complainant and the
respondent, done by the respondent was lawful or not is an issue
in another matter pending in this court the court will not deal with
that issue. That being the position the court has gone through the
final submission of the counsel for the complainant and find he
has submitted at the first paragraph of page 6 of his final
submission that, the right of a registered trade union to access an
employer's premises to exercise its organizational rights, does not
depend on the existence of a Recognition Agreement.

The court is in agreement with the complainant's counsel

submission that, the organizational rights provided under the
provision of the law cited hereinabove can be exercised by a
trade union at an employer's working place notwithstanding the
fact that the parties have no recognition agreement. Further to
that, the court has found those rights do not depends on the wish
of an employer to allow a trade union to exercise them as they
are provided under the provisions of the law cited in this
judgment in a mandatory way.

The court has arrived to the above view after seeing the
provisions of the law referred hereinabove which provides for
those rights are couched with the word "shall" which means the
right provided under those provisions of the law cannot easily be
13
denied. This view is getting support from the Black's Law
Dictionary (Abridged sixth Edition) where the authors states
thus:

"As used in statutes, contracts, or the like, this word is

generally imperative or mandatory. In common or
ordinary parlance and in its ordinary signification, the
term "shall" is a word of command, and one which has
always or which must be given a compulsory meaning
as denoting obligation..."

Under those circumstances it cannot be said the respondent

could have denied the complainant right of access at its place of
work to exercise its organizational rights provided under the law
in a mandatory way. Therefore the complainant's allegations that
it has been denied right to access at the respondent's working
place to exercise its organizational rights while the complainant
has never gone to the respondent's premises to exercise its
organizational rights and denied access cannot be said is
meritorious.

The court has considered the evidence of CW1 that the

respondent has stopped deducting dues from its members and
remit it to the complainant from when the recognition agreement

14
was terminated and the evidence by RW1 that the complainant
has no any member at its working place and find that cannot be a
ground to establish the respondent has denied the complainant
access to exercise its organizational right.

The court has found as stated earlier in this judgment there

is no dispute that before termination of recognition agreement
the complainant had members at the respondent's working place
and that was the criteria for the complainant and the respondent
to enter into a recognition agreement which was terminated by
the respondent. The court has also found CW1 told the court they
have not received any written notice from any of its members
expressing his or her intention to revoke his or her membership
with the complainant.

That being the position the court has found the complainant
was required to make a follow up and know how many members
they have at the respondent's working place before rushing to
complain the respondent has stopped to deduct dues from their
members while they don't know how many members they have.
After knowing the number of members they have is when they
would have claim for their dues from the respondent under
section 61 (3) of the ELRA. Instead of doing so the complainant is
complaining it has been denied right of getting dues form its
15
members by the respondent while they do not know how many
members they have at the respondent's working place.

In the light of all what I have stated hereinabove the court

has found as rightly submitted by the counsel for the respondent
the complainant has not managed to prove was denied right to
access at the respondent's premises to exercise its organizational
rights. That makes the court to find the answer to the first issue
is supposed to be in negative. Since determination of the second
issue is depending on the answer from the first issue and as the
first issue has been answered in negative it is obvious that the
second issue is also supposed to be answered in negative.

Having determined both issues in negative the court has

found the relief which deserve to be awarded in this matter is to
dismiss the complaint for being devoid of merit. The court has
considered the prayer of costs made in this matter by the counsel
for the respondent and find this is a labour matter where costs
are only awardable where the court is satisfied the matter is
frivolous or vexatious. The court has found as it has not been
satisfied the matter is frivolous or vexatious it is proper to make
no order as to costs in this matter. Therefore the complaint is
dismissed with no order as to costs.

16
Dated at Dar es Salaam this 19th Day of September, 2019

I. ARUFANI

JUDGE

19/ 09/2019

17
 IN THE HIGH COURT OF TANZANIA
LABOUR DIVISION

AT PAR ES SALAAM

LABOUR DISPUTE NO. 02 OF 2017

BETWEEN

CHODAWU APPLICANT

VERSUS
SOUTHERN SUN HOTEL (T) LTD. RESPONDENT

Date: 19/09/2019
Coram: Hon. E.G. Mrangu, DR.
Applicant: Evarist Kamaja, Advocate
For Applicant:
Respondent:
For Respondent: Evarist Kamaja, Advocate
C.C. Jane Lwiza

Court: This Judgment is delivered in chamber this 19th day of

September, 2019 in presence of the Mr. Evarist Kamaja,
Learned Counsel for Respondent, who also hold brief of Mr.

Evans Nzoa, Learned C '' " " it.

E.G. MrangiT^
DEPUTY REGISTRAR
19/09/2019